The 2003 Nadimarg massacre: Civil society hails J&K and Ladakh High court’s order reopening the trial

What happened at Nadimarg in 2003?  Why did the trial court close the case? On what grounds, the High Court directed reopening of the trial? What does it mean for similar investigations and trial in other cases?

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Why is Nadimarg in the news?

ON Saturday, the Jammu & Kashmir and Ladakh High Court ruled that the Nadimarg massacre case, in which 24 Kashmiri Pandits were shot dead by militants on March 23, 2003, should be reopened, and set aside the trial court order dated February 9, 2011 closing the case.  Nadimarg, which was part of Shopian sub-district, was in south Kashmir's Pulwama district, when the tragedy happened.  Since 2007, the village has been part of Shopian district, after Shopian was carved as a separate district.  

On March 23, 2003, the snow had melted in the Shopian sub-district,  and the spring was just round the corner.  A posse of militants wearing military camouflage uniforms stealthily surfaced in Nadimarg village at around 11 pm. They surrounded a cluster of houses belonging to the Kashmiri Pandits and took the residents out. They  lined them up and showered them with bullets, killing 24 of them including women and children.

The police had claimed that the policemen stationed to guard the community in the village had been disarmed by the militants before carrying out the massacre.

Eleven families comprising 52 members had stayed put in the area following the eruption of militancy in the valley in early 1990s. Twenty-eight persons, who survived the attack, were shifted to Jammu immediately after the massacre.

According to the government, militants belonging to Hizbul Mujahideen and Lashkar-e-Toiaba had carried out the attack. The attack sent shock waves across the country and left the Mulsim community in the area equally dumbfounded.

The village is nestled among the thick apple orchards, some 22 kilometres from district headquarter Shopian. Most of the  local residents in the area live off the land and apple farming is the main source of their economy.  Nearly 40 Pandit families were living in the village, but when the militancy broke out in the Himalayan region, most of them fled the village out of fear.

" There was a unique camaraderie between the communities but then suddenly the trouble started in 1990s and they had to migrate to Jammu and other parts of the country", said a local resident from the  Muslim community.

A cluster of empty and crumbling houses of the community has made the portion of Nadimarg, where the Pandit would live, a ghost village. An eerie silence reigns over the village all the time. The village remained in news for quite some time after top political leaders including former Union Home Minister L.K Advani and the then Chief Minister of Jammu and Kashmir, Mufti Mohammad Sayeed, visited the village and then faded into oblivion like the case itself.

Why did the investigation and trial take so long? 

Immediately after the tragedy, the police registered a case in Zainapora police station and began the investigation. Nearly, a month after the tragedy, Zia Mustafa , an alleged terrorist belonging to Pakistan , who, according to the police, had carried out the massacre along with three other co-accused, was arrested. A local court in Shopian framed charges against 11 persons including the seven policemen for failing to discharge their duty.

While the trial lingered on for years,  most of the witnesses, who fled the area out of fear, did not turn up to the court, spurring the trial court (Principal Sessions Judge, Shopian) to shut the evidence of prosecution in 2011.

Later, the  J&K government moved the High Court to challenge the trial court's order. The plea, however, was dismissed by the court in 2014.

Why did the trial court close the case?

The prosecution filed a criminal revision petition before the high court, and this was allowed on Saturday.  

In its petition, the prosecution claimed that brutal killings of the minority community members resulted in mass migration of the remaining people of the minority community from Nadimarg and were living at Purkhoo Camp, Muthi Camp and Mishriwala in Jammu.  The prosecution got recorded depositions of 13 witnesses, but could not procure the remaining 25 witnesses, as they refused to turn  up despite the issue of notices and summons, fearing threats to their security.  The prosecution, therefore, sought from the trial court, recording of their statements on commission, through an application.  This was opposed by the defence counsel for the accused.

The trial court at Shopian had opined that the application had been filed at a belated stage just to avoid the disposal of the case with further observation that since all the witnesses were very important and their statements could not be taken on commission.

What is the reasoning of the high court in setting aside the trial  court's order?

The high court, in its recent judgment,  pronounced on Saturday, said that it has been rightly stated by the counsel for the petitioner (State of J&K through Police station, Zainapora)  that the trial court has not appreciated the difficulty of the prosecution in procuring the presence of the witnesses.

The high court observed as follows:

"….the ultimate goal of the criminal trial, which is not only to comply the procedural requirements of the Code of Criminal Procedure but also to find out the truth and subject all the concerned to the process of law and that the basic purpose of the criminal justice administration system is defeated if the true facts are not revealed before the court and for that purpose it is the duty of the court to exhaust all the means at its disposal to ensure that the relevant evidence is brought on record and it is with this view that the prosecution has resorted to the section 503 Cr.P.C. but the application of the prosecution has been rejected, which has caused miscarriage of justice."

What does Section 503 Cr.P.C. say?

Section 503 Cr.P.C., provides that whenever, in the course of any inquiry, trial or other proceedings, it appears to the High Court, Court of Sessions or any Magistrate that the examination of witness is necessary for the ends of justice, and that the attendance of such witness cannot be procured without an amount of delay, expense of inconvenience which under the circumstances of the case would be unreasonable such court or magistrate may dispense with the attendance and may issue a commission for the examination of the witness.

What are the legal precedents which the High Court relied on, to buttress its view?

The Supreme Court in State of Maharashtra versus Dr. Praful B. Desai, (2003)  has held that recording of evidence by way of videoconferencing is permissible. The Supreme Court has said that in cases where the witness is necessary for the ends of justice and the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case would be unreasonable, the court may dispense with such attendance and issue a commission for examination of the witnesses. The Supreme Court has also said that where attendance of witness cannot be procured, the court could consider issuing a commission to record the evidence by way of videoconferencing.  

In this case, the Supreme Court drew attention to Section 504 Cr.P.C., which provides that if the witness is within the territories to which the Code extends, the commission shall be directed to the District Magistrate within the local limits of whose jurisdiction the witness is to be found.

The Supreme Court has also held that new advancement of science and technology permit officials of the Court, in the city where video conferencing is to take place, to record the evidence and that where a witness is willing to give evidence an official of the Court can be deported to record evidence on commission by way of video-conferencing and the evidence will be recorded in the studio/hall where the video-conferencing takes place.

The high court held: "The present case can also be dealt with on the same lines as has been adopted and directed by the Supreme Court in the aforesaid case of Dr. Praful B. Desai. So, the court below, in the present case, could have allowed the application of the prosecution-petitioner and could have recorded the statement of witnesses on commission or through video-conferencing."

The Supreme Court reiterated the above view in the case of Manju Devi versus State of Rajasthan and another, (2019).  In this case, the Supreme Court has held that the age of a case cannot be decisive of the matter when a prayer is made for examination of material witness and that issuing of commission and recording evidence through videoconferencing appears to be a viable alternative and directed the trial court to take all requisite steps so as to ensure that evidence comes on record with least inconvenience and/or burden to the parties and the witness.

"It has been rightly stated by counsel for the petitioner that the court below has not appreciated the difficulty of the prosecution in procuring the presence of the witnesses and that endeavour of the court below in a case of heinous nature like one on hand should be to examine all the witnesses on commission so as to unveil the truth", the high court concluded.  

The high court directed: "The court below shall now take all the necessary measures for ensuring the examination of the witnesses concerned by issuing commission and/or recording their statement videoconferencing and shall ensure expeditious proceedings so as to conclude the matter at the earliest". 

What has been the civil society's response to the high court's verdict to reopen the case? 

Zia Mustafa, the only accused in the case was lodged in Jammu's Kot Bhalwal jail and was killed in an encounter on October 24, 2021 in Poonch district. He was brought to Mendhar area by the security forces to identify a terrorist hideout. And as they neared the spot,  the hiding terrorists allgedly opened fire upon them, killing Mustafa while causing injuries to two policemen and a soldier.

There had been much speculation that the killing of Mustafa would draw the curtains on the Nadimarg case forever. However, Saturday's court order has again rekindled the hopes of justice to the victims' families.

While legal experts  welcomed the Jammu and Kashmir and Ladakh High Court's order of allowing the resumption of trial in the case, the political leaders have sought the reopening of all other cases involving the killings of innocent civilians.

Prominent lawyer Syed Riyaz Khawar said that the court has rightly held that witnesses should be examined through commission or virtual mode. "It is in the interest of justice. There are Supreme court judgements and provisions in criminal procedure code for recording the witnesses through video conferencing", Khawar said.

Jammu and Kashmir National Conference leader Umesh Talashi said that  justice must be served and culprits brought to justice. Talashi, who belongs to the Kashmiri Pandit community, batted for the reopening of other such cases.

The party spokesperson Imran Nabi Dar told this writer that his party has welcomed the High Court order. He, however, added: "The victims' families in Bijbehara, Hawal,  Gawkadal and Chattisinghpora massacres also need the answers", he said.

Senior CPI(M) leader Mohamamd Yousuf Tarigami also welcomed the High court order and hoped that the affected families could get justice.  "The recent history of Jammu Kashmir is littered with tragedies. There are many such cases. I hope justice is done", he added.

Read the order here.